‘My flights were cancelled four years ago, BA still won’t pay up

Dear Gary Rycroft

QI booked a family holiday in November 2019, paying for flights for the whole family. Due to Covid the April 2020 flights were cancelled. I tried to contact British Airways for a refund but this proved almost impossible at that time and so vouchers were issued.

We rebooked using the vouchers, paying additional fees, but these flights were also cancelled because of ongoing Covid lockdowns. Again vouchers were issued, but my son and his partner, now wife, did not use them. I requested a refund and BA said it was processing it, and I would be contacted in due course. Nothing happened. I chased monthly for about six months and was eventually told that they could not help, and I could go to arbitration.

I then made a “subject access request”. The heavily redacted response showed an internal message trail whereby the service teams were told to tell me that BA was no longer processing refunds of this nature. No reason or excuse was provided, and I only got an obtuse note from the service team.

How can BA lawfully decide not to make a refund for flights they had to cancel and not need to explain why? I would very much appreciate your counsel.

–Scott

Dear Scott

AI am sorry that you have been led a merry dance by BA. The legal position is unequivocal in that – as you say – if you pay for a service and the service is not delivered by the party who is meant to be delivering it, there should be a refund.

This is basic contract law. Party A enters into a contract with party B for a service. Party A pays party B. If party B does not or cannot provide the service which has been contracted, party A is due a refund.

During the pandemic many travel businesses faced an existential crisis, including a sudden cash flow issue. They sought to mitigate this by offering vouchers, rather than a cash refund, but the legal position is clear. If a customer of the business insists on a refund instead of a voucher for non- performance of a contract, a refund should be given. It was disingenuous for BA to just offer vouchers. Not least because they were in effect asking their customers to prop up the business with their own money, with the risk to the customer that if the business still failed, the voucher would be worthless.

At the time the Competition and Markets Authority, the consumer watchdog, published guidance endorsing what I have set out above.

Some airlines, including BA, are members of an alternative dispute resolution (ADR) scheme which is intended to help resolve contract and aviation law disputes. This is the arbitration scheme BA mentioned to you. I am usually a fan of ADR because it is a low-cost way to resolve disputes without going to court. However, businesses should not use it as a default without applying common sense to a situation and the particular dispute at hand.

Here I do not think your case warrants arbitration. This will just serve to delay you receiving the refund you are lawfully entitled to.

Your evidence is compelling. You have an account of the initial difficulty to get a refund (presumably backed up by an email trail) and effectively being forced to accept vouchers.

You have the initial promise that the vouchers for your son and his wife would be refunded and converted into cash (again hopefully written from BA). And you have the documentary evidence exposed by your subject access request as to the approach taken by BA to your reasonable request for a refund, which betrays either a mistake as to their legal responsibilities, or worse, an intention to mislead.

The time is now for a judge in the small claims court to examine your evidence and hopefully find in your favour. Do not waste any more time with the BA internal process and just tell them that unless they refund you in full within 21 days you will be issuing a claim.

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Gary Rycroft is a solicitor at Joseph A Jones & Co. His column is published twice a month online.

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